Ps Motion To Strike Answer

Case 2:18-cv-00763-RFB-NJK Document 39 Filed 10/19/18 Page 1 of 16
MATTHEW R. VANNAH, ESQ.

1
Nevada Bar No. 006855
2 AMBER N. KING, ESQ.
Nevada Bar No. 14070
3 VANNAH & VANNAH
4 400 South Seventh Street, Fourth Floor
Las Vegas, Nevada 89101
5 Telephone: (702) 369-4161
Facsimile: (702) 441-0808
6
mvannah@vannahlaw.com
7 aking@vannahlaw.com
Attorneys for Plaintiff
8 UNITED STATES DISTRICT COURT
9
DISTRICT OF NEVADA, SOUTHERN DIVISION
10
WILLIAM PEGG,
400 South Seventh Street, 4th Floor, Las Vegas, Nevada 89101
11 CASE NO.: 2:18-cv-00763

Telephone (702) 369-4161 Facsimile (702) 441-0808
Plaintiff,
VANNAH & VANNAH
12 vs. MOTION FOR ORDER STRIKING

13 DEFENDANT, CONOR MCGREGOR’S
CONOR McGREGOR and McGREGOR ANSWER
14 SPORTS AND ENTERTAINMENT, LLC,
15
Defendants.
16
17 Plaintiff, William Pegg, hereby moves the Court for an order striking Defendant
18 Conor McGregor’s Answer and entering default judgment in favor of Pegg. This sanction
19
is warranted because McGregor failed to appear at his deposition. McGregor’s flagrant
20
conduct has prejudiced Pegg in the preparation of his case. The Plaintiff further requests
21
22 that he be awarded attorneys’ fees and costs associated with McGregor’s failure to attend
23 his deposition.
24
Pegg bases this motion on Rule 37 of the Federal Rules of Civil Procedure, the
25
record of proceedings in this Court, the papers on file in this case, and the points and
26
27 authorities that follow.
28
1 MEMORANDUM OF POINTS AND AUTHORITIES
2
No pre-filing conference and certification is required with respect to the
3
Plaintiff’s filing a motion for sanctions arising from Conor McGregor’s failure to
4
5 appear at his deposition.
6 Neither the Federal Rules of Civil Procedure nor the Local Rules require a pre-
7
filing conference and certification as a prerequisite to a court imposing a sanction for
8
failing to appear at a deposition. Specifically, Federal Rule of Civil Procedure Rule 37(d)
9
10 does not require a pre-filing conference for sanctions motions arising out of the failure to
11 appear for a deposition:

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12
The applicable Federal Rule of Civil Procedure, Rule 37(d), requires a
13 movant's certification of a pre-filing conference for motions seeking
sanctions arising out of a party “failing to answer or respond” to
14
discovery. See Fed. R. Civ. P. 37(d)(1)(B). This provision “require[s]
15 that, where a party fails to file any response to interrogatories or a Rule
16 34 request, the discovering party should informally seek to obtain such
responses before filing a motion for sanctions.” Fed. R. Civ. P. 37(d),
17
Advisory Committee Notes (1993). In contrast, Rule 37(d) omits any
18 reference to requiring a pre-filing conference for sanctions motions
19 arising out of the failure to appear for deposition. Hence, a pre-filing
conference is not required under Rule 37(d) in relation to a motion for
20 sanctions arising out of a nonappearance at a deposition. See 8B Wright,
21 Miller & Marcus, Federal Practice & Procedure, § 2291, at p. 638 (2010)
(“This requirement does not apply, however, when a party fails to appear
22
for a deposition”); see also Anoruo v. Shinseki, No. 2:12–cv–01190–
23 JCM–GWF, 2013 WL 4546795, at *2 (D.Nev. Aug. 27, 2013)
24 (indicating that Rule 37 does not require a pre-filing conference prior to
moving for sanctions relating to non-appearance at a deposition).
25
26 Nationstar Mortgage, LLC v. Flamingo Trails No. 7 Landscape Maint. Ass'n, 316 F.R.D.
27 327, 335 (D. Nev. 2016).
28
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1 Additionally, Local Rule 26-7’s pre-filing conference and certification
2 requirements do not apply to a motion for sanctions arising out of a non-appearance at a

3
deposition:
4
SFR's reliance on the local rules in advocating for a pre-filing
5
conference requirement is also unpersuasive. The local rule cited by SFR
6 requires counsel to conduct a pre-filing conference in an attempt to
resolve a dispute before filing a “discovery motion.” See Local Rule
7
26-7(c). A motion for sanctions arising out of a discovery dispute is not
8 generally considered a “discovery motion” for purposes of Local Rule
9 26-7. See, *336 e.g., Anoruo, 2013 WL 4546795, at *2 (not applying
meet-and-confer requirements to Rule 37(d) sanctions motion arising out
10
of non-appearance at deposition); Dayton Valley Investors, LLC v. Union
11 Pac. R. Co., No. 2:08–cv–00127–ECR–RJJ, 2010 WL 3829219, at *2

(D.Nev. Sept. 24, 2010) (same for Rule 37(c) sanctions motion); Sille v.
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12
Parball, No. 2:07–cv–00901–KJD–LRL, 2010 WL 2505625, at *2
13
(D.Nev. June 14, 2010) (same for Rule 37(b) sanctions motion). Further,
14 the Ninth Circuit has distinguished between sanctions motions and
discovery motions in interpreting a similar local rule. See Hoffman v.
15
Constr. Protective Servs., Inc., 541 F.3d 1175, 1179 (9th Cir.2008)
16 (interpreting a Rule 37(c) sanctions motion as distinct from a motion
17 “relating to discovery” for purposes of district court's local rule). As
such, Local Rule 26-7's pre-filing conference and certification
18
requirements do not apply to a motion for sanctions arising out of a non-
19 appearance at a deposition. Anoruo, 2013 WL 4546795, at *2.
20
Nationstar Mortgage, LLC v. Flamingo Trails No. 7 Landscape Maint. Ass'n, 316 F.R.D.
21
327, 335–36 (D. Nev. 2016).
22
Accordingly, no pre-filing conference and certification is required with respect to
23
24 the Plaintiff’s filing a motion for sanctions arising from Conor McGregor’s failure to
25 appear at his deposition.

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1 Statement of Facts
2
On Wednesday, August 17, 2016, William Pegg was present inside the Copperfield
3
Theater at the MGM Resort Hotel & Casino during the Ultimate Fighting Championship
4
5 (“UFC”) 202 Pre-fight Conference (“Conference”). Conor McGregor, as a managing
6 member of McGregor Sports and Entertainment, LLC, participated in the conference to

7
promote the UFC 202 contest against Nathan Diaz. McGregor was on stage at the
8
Copperfield Theater during the press conference. During the press conference, McGregor
9
10 threw unopened beverage cans from the stage toward the audience. One of the cans hit
11 Pegg in his back, near his left shoulder. Pegg was injured as a result of the incident.
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12
On November 11, 2016, at another press conference, McGregor again picked up an
13
object to throw at another person, this time a metal folding chair. On April 7, 2018,
14
15 McGregor showed up at another press conference and proceeded to throw large objects at
16 others. The plaintiff alleges that punitive damages need to be assessed against Conor
17 McGregor and his shell company, McGregor Sports and Entertainment, LLC, in order to
18
punish Defendants for battering the Plaintiff in order to promote their business, and to
19
deter McGregor from battering and using physical violence on persons in the future, such
20
21 as they have continued to do at press conferences.
22 Legal Standard
23
Fed. R.Civ.P. 37(d) authorizes courts to impose sanctions, including any sanctions
24
25 listed in Rule 37(b)(2)(A)(i)-(vi), when a party fails to appear for his properly noticed
26 deposition:
27
(d) Party's Failure to Attend Its Own Deposition, Serve Answers to
28 Interrogatories, or Respond to a Request for Inspection. 
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1 (1) In General. 
(A) Motion; Grounds for Sanctions. The court where the action is
2
pending may, on motion, order sanctions if: 
3 (i) a party or a party's officer, director, or managing agent—or a person
4 designated under Rule 30(b)(6) or 31(a)(4)—fails, after being served
with proper notice, to appear for that person's deposition
5
6 Fed. R.Civ.P. 37(d).
7
One of the sanctions is rendering a default judgment against the “disobedient
8
party.” Id. at 37(b)(2)(A)(vi).
9
10 Five factors are relevant to the issue of whether the McGregor’s discovery
11 misconduct should be sanctioned by the striking his answer: (1) the public's interest in
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12
expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk
13
of prejudice to the party seeking sanctions; (4) the public policy favoring disposition of
14
15 cases on their merits; and (5) the availability of less drastic sanctions. Rio Properties, Inc.
16 v. Rio Int'l Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002) (citing Malone v. United States
17
Postal Serv., 833 F.2d 128, 130 (9th Cir. 1987)).
18
Striking Conor McGregor’s answer is justified because he wilfully and in bad faith
19
refused to attend his properly noticed depositions
20
21 Although the discovery sanction of striking a party's answer and entering default
22 judgment in favor of the other party is only authorized in extreme circumstances, it is
23 appropriate here because McGregor’s failure to appear at his deposition was clearly
24
willful, in bad faith, and was his own fault. See, e.g., United States ex rel. Wiltec Guam,
25
Inc. v. Kahaluu Constr. Co., 857 F.2d 600, 603 (9th Cir. 1988) (dismissal authorized when
26
27 discovery violation is due to willfulness, bad faith, or fault of the party) (citation
28 omitted).
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1 The deposition of a party may be noticed wherever the deposing party designates,
2 subject to the Court’s power to grant a protective order:

3
Plaintiffs scheduled all the depositions to occur in Las Vegas. Ordinarily,
4 the deposition of a party may be noticed wherever the deposing party
5 designates, subject to the Court's power to grant a protective order.
Fausto v. Credigy Services Corp., 251 F.R.D. 427, 429 (N.D.Calif.2008).
6 An exception to this general rule is made for defendant corporate
7 designees, who are normally deposed at the corporation's principal place
of business. Id. Defendants aver that the witnesses for categories three,
8
four, and five of Plaintiff's 30(b)(6) notice are located at Penske's
9 corporate headquarters in Pennsylvania. The proper location to conduct
10 the depositions as to categories three through five would be in
Pennsylvania, at Penske's principal place of business.
11
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12 Fernandez v. Penske Truck Leasing Co., L.P., 2:12-CV-00295-JCM, 2013 WL 438669, at

13 *2 (D. Nev. Feb. 1, 2013).
14 Federal Rule of Civil Procedure Rule 30 does not require that the noticing party
15
confer with opposing party before scheduling a deposition:
16
Fed.R.Civ.Pro. 30(b)(1) provides that a party may take the deposition of
17
any person upon reasonable notice. A party whose deposition has been
18 noticed may seek a protective order under Rule 26(c), including an order
19 that the deposition take place only at a designated time or place. Rule 30
does not, by its terms, require that the noticing party confer with
20
opposing counsel before scheduling a deposition. The failure to meet
21 and confer in scheduling a deposition, however, is a factor in deciding
22 whether a protective order should be granted. See Seabrook Medical
Systems, Inc. v. Baxter Healthcare Corp., 164 F.R.D. 232 (S.D.Ohio
23 1995) and Valvida v. KMart Corp., 2000 WL 1739215 (D. Virgin Islands
24 2000).
25
Koninklike Philips Elecs. N.V. v. KXD Tech., Inc., 2:05-CV1532RLHGWF, 2007 WL
26 3101248, at *17 (D. Nev. Oct. 16, 2007) (see also Bishop v. Potter, 2:08-CV-00726-RLH,
27 2010 WL 2771763, at *1 (D. Nev. June 4, 2010).
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1 Once a plaintiff notices the deposition of a defendant, it is incumbent upon the
2 defendant to either appear at his deposition or timely move for a protective order:
3
Absent a protective order or an order staying the deposition, the party,
4 including its officers or Rule 30(b)(6) deponents, is required to appear
5 for a properly noticed deposition. Anderson v. Air West, Inc., 542 F.2d
1090, 1093 (9th Cir.1976); Pioche Mines Consolidated, Inc. v. Dolman,
6 333 F.2d 257, 269 (9th Cir.1964). See also Wright, Miller & Marcus,
7 Federal Practice and Procedure: Civil 2d, § 2291, p. 721. Rule 37(d)
provides that the failure of a party to appear for deposition may result in
8
the imposition of sanctions under Rule 37(b)(2)(A), (B) or (C). In Abiola
9 v. Abubaker, 2007 WL 898197 (N.D.Ill.2007) *7, the court stated that if
10 the noticing party refuses to reschedule a properly noticed deposition,
it is incumbent on the party whose deposition is noticed to move for a
11
protective order. The noticed party does not have the option of sitting
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12 back, failing to appear, requiring the noticing party to take action, and
13 then crying foul to the court. The severity of the sanction to be
imposed, however, depends on the extent to which the failure to appear
14 was willful or in bad faith. See Advisory Committee Notes to Rule
15 37(d). 
16
Koninklike Philips Elecs. N.V. v. KXD Tech., Inc., 2:05-CV1532RLHGWF, 2007 WL
17 3101248, at *18 (D. Nev. Oct. 16, 2007) (emphasis added).
18
Deposition of Conor McGregor
19
20 The Plaintiff first requested deposition dates for Conor McGregor on September
21
19, 2017. See email requesting deposition dates, attached hereto as Exhibit 1. The
22
Plaintiff made a second attempt to request Conor McGregor’s deposition on November
23
24 29, 2017. See email requesting deposition dates, attached hereto as Exhibit 2. On March
25 13, 2018, the Plaintiff served his Notice of Taking the Deposition of Conor McGregor.
26 See March 13, 2018, Notice of Taking the Deposition of Conor McGregor, attached
27
hereto as Exhibit 3. McGregor’s deposition was scheduled for April 6, 2018. However,
28
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1 McGregor did not appear for his deposition. Instead, on the night of April 5, 2018, he was
2 throwing metal barriers and other objects at the UFC 223, at which he was not scheduled
3
to appear.
4
On April 19, 2018, the Plaintiff filed a Motion to Compel the deposition of Conor
5
6 McGregor. See Motion to Compel, attached as Exhibit 4. Plaintiff’s motion was to be
7 heard on May 23, 2018. However, on April 26, 2018, the Defendants filed a Notice to
8
Adverse Party of Removal to Federal Court. On May 25, 2018, Plaintiff served a Notice
9
of Deposition of McGregor, with the deposition set for June 15, 2018. See May 25, 2017,
10
11 Notice of Deposition, attached as Exhibit 5. On May 30, 2018, Plaintiff was notified that
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12 McGregor would not appear for his deposition set for June 15, 2018 and that a deposition
13
date for sometime in August would be given. On June 27, 2018, Plaintiff again filed a
14
Motion to Compel the deposition of McGregor. See Motion to Compel, attached as
15
16 Exhibit 6. The Court denied the June 27, 2018 Motion to Compel on August 1, 2018,
17 based on meet and confer deficiencies.

18
It was not until after this time, on August 6, 2018, that Plaintiff was provided a
19
date for McGregor’s deposition of October 18, 2018, but the location was unconfirmed.
20
21 See Email regarding deposition date, attached as Exhibit 7. Discovery in this matter ends
22 on October 23, 2018.

23 On August 16, 2018, McGregor’s counsel indicated that McGregor would be
24
available for a deposition on October 18, 2018. However, counsel was not certain where
25
the deposition would take place, but believed that it would probably be in Dublin.
26
27 Plaintiff set the deposition of McGregor for September 18, 2018. See Third Notice
28 of Deposition, attached as Exhibit 8. McGregor did not appear for this deposition and a
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1 non-appearance was entered. See Notice of non-appearance, attached as Exhibit 9.
2 McGregor did not seek a protective order. Instead, McGregor willfully ignored the the
3
deposition notice and did not attend his deposition. On August 28, 2018, McGregor’s
4
counsel stated he was still trying to confirm an appearance for an October 18, 2018
5
6 deposition. See August 28, 2018, Email, attached hereto as Exhibit 10. At depositions of
7 percipient witnesses on October 17, 2018, McGregor’s counsel stated he was still trying
8
to obtain deposition dates for McGregor. See October 17, 2018, Email, attached hereto
9
as Exhibit 11. However, after more than a year trying to obtain a date for McGregor’s
10
11 deposition, and McGregor not appearing for three set deposition, and two filed motions to
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12 compel the deposition, the plaintiff now brings this motion to strike McGregor’s answer
13
because discovery ends on October 23, 2018, and plaintiff has not been able to depose
14
McGregor.
15
16 Striking Conor McGregor’s answer is justified because he wilfully and in bad faith
failed to verify and answer his interrogatories
17
18 Conor McGregor did not verify his interrogatories in contravention of the
19 requirement of Rule 33 that answers be signed.

20
Fed. R.Civ.P. 37(a)(4) states that “an evasive or incomplete disclosure, answer, or
21
response must be treated as a failure to disclose, answer, or respond.” Fed. R.Civ.P. 37(a)
22
23 (4).
24 Fed. R.Civ.P. 33 provides that “[t]he person who makes the answers [to the
25
interrogatories] must sign them, and the attorney who objects must sign any objections.”
26
Fed. R.Civ.P. 33(b)(5).
27
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1 Interrogatories were served on McGregor on August 1, 2018. In McGregor’s
2 August 31, 2018 answer to interrogatories, McGregor failed provide a verification to his
3
answers. In a phone conference with counsel, it was represented that verifications were
4
requested from McGregor, but no response from McGregor as to when or if they would
5
6 be signed was available. In addition, McGregor failed to respond to his interrogatories
7 with information readily available to him. For example:

8
SPECIAL INTERROGATORY NO. 12:
9 What type of beverage cans did you throw, including size and weight,
10 during the UFC 202 pre-fight conference?
RESPONSE TO SPECIAL INTERROGATORY NO. 12:
11
Defendant objects to this request on the grounds that it is overbroad,

unduly burdensome, vague and ambiguous, and not reasonably calculated
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12
to lead to the discovery of admissible evidence. Notwithstanding these
13
objections and without waiving the same, Defendant does not know the
14 size, weight, or type of the beverage cans thrown by various individuals
15 that date.
16
See McGregor’s Response to Interrogatories, no. 12, attached as Exhibit 12
17
18 This response was clearly a non-answer as the question was to what type of can
19 McGregor threw, not the types of cans thrown “by various individuals.” Further, there is
20 no verification from McGregor that this is his intended response.

21
SPECIAL INTERROGATORY NO. 15:
22 Why did you throw beverage cans at the pre-fight conference?
23 RESPONSE TO SPECIAL INTERROGATORY NO. 12:
Objection. This calls for a legal conclusion. As such, Defendant’s
24
attorneys respons as follows: The Plaintiff negligently failed to provide
25 security for Defendant
26
See McGregor’s Response to Interrogatories, no. 15, attached as Exhibit 12.
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1 This response was clearly a non-answer as the question of why McGregor threw
2 the cans. This response is also a response from McGregor’s counsel and not McGregor.
3
This question is a simple question that could be answered in an interrogatory by
4
McGregor, in lieu of a deposition questions, however, McGregor continues to
5
6 demonstrate his lack of participation in any discovery matters in this case.
7 The factors relevant to Rule 37 sanctions weigh heavily in favor of striking Conor
8 McGregor’s Answer
9 (1) the public's interest in expeditious resolution of litigation and (2) the court's need
10 to manage its docket
11
“The first two of these factors favor the imposition of sanctions in most cases…”
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12
Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990).
13
14 This action was filed on March 23, 2017, in the Eighth Judicial District Court,
15 Clark County, Nevada. McGregor Sports and Entertainment, LLC, was served a copy of
16
the Complaint and Summons on March 29, 2017. Conor McGregor was personally served
17
a copy of the Complaint and Summons on July 11, 2017. On April 20, 2018, Plaintiff
18
19 filed a motion to compel the deposition of McGregor. The Defendants’ then filed a notice
20 of removal on April 26, 2018, more than 1 year after the commencement of the action.
21
This allowed a delay in having to respond to any motion to compel or present for
22
McGregor’s deposition. Discovery is now closing on October 23, 2018, without any
23
24 further participation by McGregor.
25 (3) the risk of prejudice to the party seeking sanctions

26
Severe sanctions of default or dismissal for discovery violations are warranted if a
27
28 defendant’s actions impair a plaintiff’s ability to construct his or her case:
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1 This factor “looks to whether the [defendants'] actions impaired [the

plaintiffs'] ability to go to trial or threatened to interfere with the rightful
2
decision of the case.” U.S. ex rel. Wiltec Guam, Inc. v. Kahaluu Const.
3 Co., 857 F.2d 600, 604 (9th Cir. 1988). In Hyde & Drath, the Ninth
4 Circuit affirmed a dismissal where the district court found that because
the plaintiffs “continually ignored scheduled depositions,” the
5 defendants “faced a fast approaching court date, a lack of crucial
6 information, and an inability to construct a defense.” 24 F.3d at 1167;
see also Commodity Futures Trading Comm'n v. Noble Metals Int'l, Inc.,
7
67 F.3d 766, 771 (9th Cir. 1995) (holding a party's ability to make its
8 case was prejudiced by the other party's willful refusal to comply with a
9 court order to designate a representative who could testify at a discovery
deposition). Thus, in Hyde & Drath the movants' inability to depose
10
most of the other parties was alone sufficient to find prejudice
11 supporting case-ending sanctions. In other cases, the Ninth Circuit has

upheld findings that delay and refusal to complete depositions, when

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12
compounded with a failure to complete written discovery, were
13 sufficiently prejudicial to support case-ending sanctions. See, e.g.,
14 Wanderer, 910 F.2d at 656.
15
Sou v. Bash, 2017 WL 5634853, at *2 (D. Nev. Nov. 21, 2017); see also
16 Wanderer v. Johnston, 910 F.2d 652, 656 (9th Cir. 1990).
17
McGregor’s failure to appear for his deposition has prejudiced the Plaintiff
18
19 because he is unable to ascertain relevant facts surrounding McGregor’s throwing cans
20 into the audience at a press conference. Several defenses have been made by McGregor’s
21
counsel as to the incident, however, Plaintiff has been unable to ascertain any facts
22
directly from McGregor as to his account of the incident, either through deposition or
23
24 written discovery. It would prejudice Plaintiff, should Plaintiff have to proceed to trial
25 without having been able to first interview McGregor as to his account of the incident,
26 only having first hearing McGregor’s version at trial.

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1 Because McGregor refuses to participate in discovery, the Plaintiff lacks crucial
2 information to construct his case and has been prejudiced by McGregor’s behavior.
3
(4) the public policy favoring disposition of cases on their merits
4
5 “While the public policy favoring disposition of cases on their merits weighs
6 against default judgment, that single factor is not enough to preclude imposition of this
7
sanction when the other four factors weigh in its favor.” Rio Properties, Inc. v. Rio Int'l
8
Interlink, 284 F.3d 1007, 1022 (9th Cir. 2002).
9
10 (5) the availability of less drastic sanctions
11
“Finally, the fifth factor requires the district court to consider alternate, less
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12
severe, sanctions before ordering dismissal. To determine whether the district court
13
fulfilled this obligation, the reviewing court examines whether the court (1) explicitly
14
15 discussed the feasibility of less drastic sanctions and explained why alternative sanctions
16 would be inappropriate, (2) implemented alternative sanctions before ordering dismissal,

17
and (3) warned the party of the possibility of dismissal before actually ordering it.
18
Adriana, 913 F.2d at 1412–13. But, ‘explicit discussion of alternatives is unnecessary if
19
20 the district court actually tries alternatives before employing the ultimate sanction of
21 dismissal.’ Malone, 833 F.2d at 132.” Hyde & Drath v. Baker, 24 F.3d 1162, 1167 (9th
22
Cir. 1994), as amended (July 25, 1994).
23
A lesser sanction will be ineffective because McGreogr has demonstrated a clear
24
25 disinterest in appearing on his own behalf to answer for the incident, including not
26 appearing for his deposition or verifying his answers to interrogatories. For example,
27
instead of appearing for his scheduled deposition on April 6, 2018, McGregor instead, on
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1 the night of April 5, 2018, appeared at a UFC event where he was throwing metal barriers
2 and other objects at other UFC fighters. McGregor was not scheduled to appear at that
3
event, but chose to attend that event instead of appearing at his April 6, 2018 deposition.
4
Attorneys’ fees and costs
5
6 Under Rule 37(d)(3), if a party fails to attend his own properly noticed deposition,
7
instead of or in addition to other sanctions, “the court may require the party failing to act,
8
the attorney advising that party, or both to pay the reasonable expenses, including
9
10 attorney’s fees, caused by the failure, unless the failure was substantially justified or other
11 circumstances make an award of expenses unjust.” Fed. R.Civ.P 33(d)(d).

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12
Conor McGregor’s willful failure to attend his deposition is not substantially
13
justified. Therefore, the Plaintiff requests that McGregor pay the court reporter fees of
14
15 $300.45 (see Exhibit 13) and costs associated with the deposition for which he did not
16 appear. The Plaintiff also requests that McGregor pay the Plaintiff’s attorneys’ fees and
17 costs associated with preparing this motion and reply.

18
CONCLUSION
19
Conor McGregor deliberately chose not to attend his deposition. McGregor’s
20
21 failure to attend his deposition has gravely prejudiced the Plaintiff and made it impossible
22 for him to ascertain crucial information to construct his case. See Valley Eng'rs Inc. v.
23
Elec. Eng'g Co., 158 F.3d 1051, 1058 (9th Cir. 1998) (Where a party so damages the
24
integrity of the discovery process that there can never be assurance of proceeding on the
25
26 true facts, a case dispositive sanction may be appropriate.). Therefore, the Plaintiff
27 requests that the Court strike Conor McGregor’s Answer and enter a default judgment in
28
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1 favor of the Plaintiff. The Plaintiff further requests that he be awarded attorneys’ fees and
2 costs associated with McGregor’s failure to attend his deposition.

3
Dated: October 19, 2018.
4
VANNAH & VANNAH
5
6 /s/ Amber N. King
_____________________________
7
AMBER N. KING, ESQ.
8 Nevada Bar No. 14070
400 South Seventh Street, Fourth Floor
9
10 Attorney for Plaintiff,
William Pegg
11
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1
2 CERTIFICATE OF SERVICE (EDCR 8.05 (f))
3
I hereby certify that the following parties are to be served as follows:
4
Electronically:
5
6 MCCORMICK, BARSTOW, SHAPPARD,
WAYTE & CARRUTH, LLP
7
Michael Merritt, Esq.
8 8337 West Sunset Road, Suite 350
9
10 Attorney for Defendant,
Conor McGregor and
11 McGregor Sports & Entertainment, LLC

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Traditional Manner:
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15 DATED: October 19, 2018.
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/s/ Amber N. King
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An employee of the Law Office of
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VANNAH & VANNAH
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Case 2:18-cv-00763-RFB-NJK Document 39 Filed 10/19/18 Page 1 of 16

MATTHEW R. VANNAH, ESQ.

11 CASE NO.: 2:18-cv-00763

12 vs. MOTION FOR ORDER STRIKING

1 MEMORANDUM OF POINTS AND AUTHORITIES

11 appear for a deposition:

1 Additionally, Local Rule 26-7’s pre-filing conference and certification

2 requirements do not apply to a motion for sanctions arising out of a non-appearance at a

11 Pac. R. Co., No. 2:08–cv–00127–ECR–RJJ, 2010 WL 3829219, at *2

25 appear at his deposition.

6 member of McGregor Sports and Entertainment, LLC, participated in the conference to

22 judgment in favor of the other party is only authorized in extreme circumstances, it is

2 subject to the Court’s power to grant a protective order:

12 Fernandez v. Penske Truck Leasing Co., L.P., 2:12-CV-00295-JCM, 2013 WL 438669, at

1 Once a plaintiff notices the deposition of a defendant, it is incumbent upon the

17 based on meet and confer deficiencies.

22 on October 23, 2018.

1 non-appearance was entered. See Notice of non-appearance, attached as Exhibit 9.

19 requirement of Rule 33 that answers be signed.

1 Interrogatories were served on McGregor on August 1, 2018. In McGregor’s

7 with information readily available to him. For example:

Defendant objects to this request on the grounds that it is overbroad,

20 no verification from McGregor that this is his intended response.

25 (3) the risk of prejudice to the party seeking sanctions

1 This factor “looks to whether the [defendants'] actions impaired [the

11 supporting case-ending sanctions. In other cases, the Ninth Circuit has

upheld findings that delay and refusal to complete depositions, when

26 only having first hearing McGregor’s version at trial.

1 Because McGregor refuses to participate in discovery, the Plaintiff lacks crucial

16 would be inappropriate, (2) implemented alternative sanctions before ordering dismissal,

11 circumstances make an award of expenses unjust.” Fed. R.Civ.P 33(d)(d).

17 costs associated with preparing this motion and reply.

2 costs associated with McGregor’s failure to attend his deposition.

11 McGregor Sports & Entertainment, LLC

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